1998 - the year in review.

• Author: Johnston, Craig N.

1. INTRODUCTION

   This Article is intended to provide a short summary of the most important environmental case law developments of 1998. The treatment of cases is divided into two categories. First, I addresses in some detail what I consider to be the three most significant developments of this past year. This section will discuss the background from which the relevant cases arose, as well as their most obvious implications. The second category will provide a somewhat briefer analysis of other significant decisions, organized by statute or subject matter.

2. THE THREE MOST IMPORTANT CASE LAW DEVELOPMENTS OF 1998

   1. Steel Company and its Progeny

      In my view, the most significant decisions of the past year are those involving the "constitutionalization" of the so-called Gwaltney doctrine and the implications of this development for citizen suits. These cases also involve the most complex legal issues.

      1. Background

         In 1987, the Supreme Court determined, in Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation,(1) that citizens could not bring suit under the Clean Water Act (CWA)(2) for "wholly past" violations, that is, violations that had been cured before the filing of the lawsuit.(3) Gwaltney was a statutory decision. In reaching its decision, the Court relied on the fact that the CWA's citizen suit provision allows suit only against those "alleged to be in violation" of the CWA.(4) The Court read this language as indicating that the citizens must allege, and ultimately prove, that the defendant is still in violation at the time the complaint is filed.(5)

         The Gwaltney decision essentially eliminated random, episodic violations from the scope of citizen enforcement. It also eliminated systemic violations, if the root cause of the violation was eliminated before the case was filed.

         For those concerned about citizen enforcement, Gwaltney left the following two outstanding questions: 1) Would Congress "fix" the problem by changing the statutory formulations to allow suits for wholly past violations?; and 2) What would happen in situations where the violator eliminated the problem causing the violations during the pendency of the law suit? Would the case be moot?

         On the first question, Congress took action in the context of the Clean Air Act (CAA)(6) when it amended that law in 1990. It amended section 304(a)(1) of that statute to allow citizens to bring suit for repeated past violations.(7) While this action had effect only under the CAA, it seemed to indicate that, at least at that time, Congress disagreed with the Gwaltney result as a matter of policy.

         On the second question, although the Gwaltney opinion itself contains dicta suggesting that the defendant could have rendered the case moot by convincingly demonstrating that it had eliminated the root cause of the violations,(8) the Fourth Circuit concluded on remand by determining that such a demonstration mooted only the injunctive portion of the case.(9) Other circuits agreed.(10) Under the logic of these cases, in situations where the problem remains unresolved at the time the complaint is filed, the plaintiff may still seek civil penalties--even if the defendant later achieves compliance--not only for postcomplaint violations, but also for precomplaint violations back through the statute of limitations period.(11)

      2. Steel Co. v. Citizens for a Better Environment(12)

         In this case, the defendant had failed to file any required reports under the Emergency Planning and Community Right to Know Act (EPCRA)(13) for seven years.(14) After Citizens for a Better Environment (CBE) sent in its notice letter(15) (and prior to the filing of the complaint), the defendant submitted all of the relevant reports, thus rendering the violations "wholly past." The Seventh Circuit had determined that, unlike the CWA, EPCRA allowed citizens to file suit with respect to wholly past violations.(16)

         In Steel Co., the Supreme Court reversed, but on constitutional, not statutory grounds. In an opinion written by Justice Scalia, the Court found that the plaintiff had no standing to bring the case, due to a lack of redressability. The majority focused in particular on three of CBE's claims for relief. With respect to the plaintiff's request for penalties, the Court determined that the potential availability of such penalties did not provide redressability because, under EPCRA, penalties are payable to the Treasury, not the citizen plaintiff.(17) The Court reasoned that "[i]n requesting [penalties], therefore, respondent seeks not remediation of its own injury--reimbursement for the costs it incurred as a result of the [violation]--but vindication of the rule of law--the `undifferentiated public interest' in faithful execution of EPCRA. This does not suffice."(18)

         The majority further found that CBE's request for attorneys' fees could not provide redressability because "[t]he litigation must give the plaintiff some benefit besides reimbursement of costs that are a byproduct of the litigation itself."(19) Finally, the Court concluded that the injunctive relief sought by CBE--which was designed to ensure future compliance--was also insufficient, because CBE had alleged neither a continuing violation, nor the imminence of a future violation.(20) The Court further opined that, based upon the facts before it, there appeared to be no basis for any such allegations.(21) Thus, there was no basis for any such relief.

         In his concurring opinion,(22) Justice Stevens argued that the deterrent effect a penalty would have on both the violator and others similarly situated should be enough to establish the required redressability:

         When one private party is injured by another, the injury can be redressed in at least two ways: by awarding compensatory damages or by imposing a sanction on the wrongdoer that will minimize the risk that the harm-causing conduct will be repeated. Thus, in some cases a tort is redressed by an award of punitive damages; even when such damages are payable to the sovereign, they provide a form of redress for the individual as well.(23) Justice Stevens also maintained that the historical practice--in both England and the United States--of allowing private persons to prosecute criminal cases lent further support to the notion that the Framers would have considered these actions constitutionally valid.(24)

         The majority responded to this argument in the following terms:

         Justice Stevens thinks it is enough that respondent will be gratified by seeing petitioner punished for its infractions and that the punishment will deter the risk of future harm. If that were so, our holdings in Linda R.S. v. Richard D., and Simon v. Easter Ky. Welfare Rights Organization, are inexplicable. Obviously, such a principle would make the redressability requirement vanish. By the mere bringing of his suit, every plaintiff demonstrates his belief that a favorable judgment will make him happier. But although a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, that a wrongdoer gets his just deserts [sic], or that the nation's laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury. Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.(25) 3. A Brief Overview of the Lower Court Decisions

         1. Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.(26)

            In Laidlaw, the defendant had failed to comply with the CWA for several years. The defendant came into compliance shortly after the filing of the lawsuit. The district court imposed a significant fine, but denied the plaintiff's request for injunctive relief, in part because, by the time the case reached that stage of the litigation, the defendant had been in compliance for five years.(27)

            On appeal, the Fourth Circuit reversed the penalty award, holding that the case had become moot as soon as the district court denied the request for injunctive relief.(28) The court first cited Arizonans for Official English v. Arizona(29) and two other cases(30) for the proposition that mootness and standing are closely linked, and that the mootness doctrine requires that the elements of standing (injury, causation, and redressability) "must continue to exist at every stage of review, not merely at the time of the filing of the complaint."(31) The court went on to conclude that because only penalties remained at stake in the litigation before it, there was no continuing redressability and, therefore, Steel Co. indicated that the case was moot.(32) It therefore remanded the case to the lower court, with instructions to dismiss the case. In a footnote, the Laidlaw court further determined that the plaintiffs' "failure to obtain relief on the merits of their claims precludes any recovery of attorneys' fees or other litigation costs because such an award is available only to a `prevailing or substantially prevailing party.'"(33)

         2. Dubois v. United States Department of Agricultures(34)

            In Dubois, the relevant defendant was discharging water from a river into a pond to replace water it had drained from the pond for snow-making activities.(35) The district court originally had determined that the defendant's activities were not subject to regulation under the CWA.(36) The First Circuit reversed and directed entry of judgment regarding the plaintiff's request for injunctive relief.(37) As directed, the lower court entered the injunction.(38) It then prepared to consider the issue of penalties. Having read Steel Co. and Laidlaw, however, the discharger moved for dismissal on the grounds of mootness.

            As in Laidlaw, the Dubois court began its analysis with Arizonans for Official English,(39) quoting it for the principle that the mootness doctrine is just "`the doctrine of standing set in a time frame: The requisite...